Michael Montano

Patent Trials and Appeals Board

Jan 30, 2020

14061746 - (D) (P.T.A.B. Jan. 30, 2020)

UNITED STATES PATENT AND TRADEMARK OFFICE
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
14/061,746 10/23/2013 Michael Montano 119705-001UT2 6797
27189 7590 01/30/2020
PROCOPIO, CORY, HARGREAVES & SAVITCH LLP
525 B STREET
SUITE 2200
SAN DIEGO, CA 92101
EXAMINER
GLENNIE, DEBRA L
ART UNIT PAPER NUMBER
3689
NOTIFICATION DATE DELIVERY MODE
01/30/2020 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
PTONotifications@procopio.com
docketing@procopio.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MICHAEL MONTANO
Appeal 2019-000835
Application 14/061,746
Technology Center 3600
Before HUBERT C. LORIN, NINA L. MEDLOCK, and
MATTHEW S. MEYERS, Administrative Patent Judges.

MEDLOCK, Administrative Patent Judge.
DECISION ON APPEAL

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STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s rejection of claims 1–18. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.
CLAIMED INVENTION
Appellant’s claimed invention relates to “authenticating online
customer service reviews” and, more particularly, to “utilizing customer
payment, location and other unique data to authenticate online customer
service reviews of a service provider” (Spec. ¶ 1). Claims 1 and 10 are the
independent claims on appeal. Claim 1, reproduced below with bracketed
notations added, is illustrative of the claimed subject matter:
1. A method of authenticating online customer service
reviews provided via one or more mobile devices, the method
comprising:
[(a)] receiving, by a mobile payment system, payment
information from a customer for a service by a service provider;
[(b)] prompting, by the mobile payment system, the
customer to complete a customer service review upon receipt of
the payment information;
[(c)] receiving, by an authentication server, a customer
service review from the customer in response to the prompt;

1 We use the term Appellant to refer to “applicant” as defined in 37 C.F.R.
§ 1.42(a). Our decision references Appellant’s Appeal Brief (“Appeal Br.,”
filed July 3, 2018) and Reply Brief (“Reply Br.,” filed November 6, 2018),
and the Examiner’s Answer (“Ans.,” mailed September 6, 2018) and Non-
Final Office Action (“Non-Final Act.,” mailed December 13, 2017).
Appellant identifies ReviewBuzz, Inc. as the real party in interest. Appeal
Br. 2.
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[(d)] accessing, by the authentication server, information
related to at least one unique customer identifier from an
authentication database; and
[(e)] authenticating, by the authentication server, the
customer service review as being created by the customer which
received the service based on the at least one unique customer
identifier.
REJECTIONS
Claims 1–18 are rejected under 35 U.S.C. § 101 as directed to patent-
ineligible subject matter.
Claims 1, 2, and 5–7 are rejected under 35 U.S.C. § 102(b) as
anticipated by Chang et al. (US 7,860,803 B1, iss. Dec. 28, 2010)
(“Chang”).2
Claims 10–16 are rejected under 35 U.S.C. § 102(b) as anticipated by
Black (US 2011/0218930 A1, published Sept. 8, 2011).
Claims 3, 4, and 8 are rejected under 35 U.S.C. § 103 as unpatentable
over Chang and Tuchman et al. (US 2012/0266258 A1, published Oct. 18,
2012).
Claim 9 is rejected under 35 U.S.C. § 103 as unpatentable over Chang
and Black.
Claim 17 is rejected under 35 U.S.C. § 103 as unpatentable over
Black and Delepet (US 2009/0125382 A1, published May 14, 2009).

2 Although the Examiner lists claims 1–8 in the heading as anticipated by
Chang (Non-Final Act. 14), the Examiner only applies Chang to claims 1, 2,
and 5–7 (id. at 14–19).
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Claim 18 is rejected under 35 U.S.C. § 103 as unpatentable over
Black and Page et al. (US 2005/0102197 A1, published May 12, 2005)
(“Page”).
ANALYSIS
Patent-Ineligible Subject Matter
Appellant argues the pending claims as a group (Appeal Br. 7–15).
We select independent claim 1 as representative. The remaining claims
stand or fall with claim 1. See 37 C.F.R. §41.37(c)(1)(iv).
Under 35 U.S.C. § 101, an invention is patent eligible if it claims a
“new and useful process, machine, manufacture, or composition of matter.”
35 U.S.C. § 101. The Supreme Court, however, has long interpreted § 101
to include an implicit exception: “[l]aws of nature, natural phenomena, and
abstract ideas” are not patentable. Alice Corp. v. CLS Bank Int’l, 573 U.S.
208, 216 (2014).
The Supreme Court, in Alice, reiterated the two-step framework
previously set forth in Mayo Collaborative Services v. Prometheus
Laboratories, Inc., 566 U.S. 66 (2012), “for distinguishing patents that claim
laws of nature, natural phenomena, and abstract ideas from those that claim
patent-eligible applications of those concepts.” Alice Corp., 573 U.S. at 217.
The first step in that analysis is to “determine whether the claims at issue are
directed to one of those patent-ineligible concepts.” Id. If the claims are not
directed to a patent-ineligible concept, e.g., an abstract idea, the inquiry
ends. Otherwise, the inquiry proceeds to the second step where the elements
of the claims are considered “individually and ‘as an ordered combination’”
to determine whether there are additional elements that “‘transform the
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nature of the claim’ into a patent-eligible application.” Id. (quoting Mayo,
566 U.S. at 79, 78). This is “a search for an ‘inventive concept’ — i.e., an
element or combination of elements that is ‘sufficient to ensure that the
patent in practice amounts to significantly more than a patent upon the
[ineligible concept] itself.’” Id. at 217–18 (alteration in original).
In rejecting the pending claims under 35 U.S.C. § 101, the Examiner
determined that the claims are directed to “managing a customer service
review, specifically, directed towards presenting a review to a customer
based on a [sic] payment information from a service provider,” i.e., to a
fundamental economic practice, a method of organizing human activities,
and an idea of itself (Non-Final Act. 4) and, therefore, to an abstract idea,
similar to other concepts that the courts have held abstract (id. at 4–10). The
Examiner also determined that the claims do not include additional elements
or a combination of elements sufficient to amount to significantly more than
the abstract idea itself (id. at 10–13).
After Appellant’s briefs were filed, and the Examiner’s Answer
mailed, the U.S. Patent and Trademark Office (the “USPTO”) published
revised guidance for use by USPTO personnel in evaluating subject matter
eligibility under 35 U.S.C. § 101. 2019 REVISED PATENT SUBJECT MATTER
ELIGIBILITY GUIDANCE, 84 Fed. Reg. 50, 57 (Jan. 7, 2019) (the “2019
Revised Guidance”). That guidance revised the USPTO’s examination
procedure with respect to the first step of the Mayo/Alice framework by
(1) “[p]roviding groupings of subject matter that [are] considered an abstract
idea”; and (2) clarifying that a claim is not “directed to” a judicial exception
if the judicial exception is integrated into a practical application of that
exception. Id. at 50. The 2019 Revised Guidance, by its terms, applies to all
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applications, and to all patents resulting from applications, filed before, on,
or after January 7, 2019. Id.3
Step One of the Mayo/Alice Framework (2019 Revised Guidance, Step 2A)
The first step in the Mayo/Alice framework, as mentioned above, is to
determine whether the claims at issue are “directed to” a patent-ineligible
concept, e.g., an abstract idea. Alice Corp., 573 U.S. at 217. This first step,
as set forth in the 2019 Revised Guidance (i.e., Step 2A), is a two-prong test;
in Step 2A, Prong One, we look to whether the claim recites a judicial
exception, e.g., one of the following three groupings of abstract ideas:
(1) mathematical concepts; (2) certain methods of organizing human
activity, e.g., fundamental economic principles or practices, commercial or
legal interactions; and (3) mental processes. 2019 Revised Guidance,
84 Fed. Reg. at 54. If so, we next consider whether the claim includes
additional elements, beyond the judicial exception, that “integrate the
[judicial] exception into a practical application,” i.e., that apply, rely on, or
use the judicial exception in a manner that imposes a meaningful limit on the
judicial exception, such that the claim is more than a drafting effort designed
to monopolize the judicial exception (“Step 2A, Prong Two”). Id. at 54–55.
Only if the claim (1) recites a judicial exception and (2) does not integrate
that exception into a practical application do we conclude that the claim is
“directed to” the judicial exception, e.g., an abstract idea.

3 The USPTO issued an update on October 17, 2019 (the “October 2019
Update: Subject Matter Eligibility,” available at https://www.uspto.gov/sites/
default/files/documents/peg_oct_2019_update.pdf) clarifying the 2019
Revised Guidance in response to comments solicited from the public.
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We are not persuaded by Appellant’s arguments that the Examiner
erred in determining that claim 1 is directed to an abstract idea (Appeal
Br. 7–9). The Federal Circuit has explained that “the ‘directed to’ inquiry
applies a stage-one filter to claims, considered in light of the specification,
based on whether ‘their character as a whole is directed to excluded subject
matter.’” Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1335 (Fed. Cir.
2016) (quoting Internet Patents Corp. v. Active Network, Inc., 790 F.3d
1343, 1346 (Fed. Cir. 2015)). It asks whether the focus of the claims is on a
specific improvement in relevant technology or on a process that itself
qualifies as an “abstract idea” for which computers are invoked merely as a
tool. See id. at 1335–36. Here, it is clear from the Specification (including
the claim language) that the claims focus on an abstract idea, and not on any
improvement to technology and/or a technical field.
Claim 1, reproduced above, recites a method of authenticating online
customer service reviews provided via one or more mobile devices, the
method comprising: (1) “receiving, by a mobile payment system, payment
information from a customer for a service by a service provider” (step (a));
(2) “prompting, by the mobile payment system, the customer to complete a
customer service review upon receipt of the payment information” (step (b));
(3) “receiving, by an authentication server, a customer service review from
the customer in response to the prompt” (step (c)); (4) “accessing, by the
authentication server, information related to at least one unique customer
identifier from an authentication database” (step (d)); and
(5) “authenticating, by the authentication server, the customer service review
as being created by the customer which received the service based on the at
least one unique customer identifier” (step (e)). These limitations, when
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given their broadest reasonable interpretation, recite receiving payment
information; prompting a customer to complete a customer service review;
receiving the customer service review; and authenticating the customer
service review based on a unique customer identifier.4 Although claim 1
recites that the method steps are performed using “one or more mobile
devices,” “a mobile payment system,” “an authentication server,” and “an
authentication database,” the underlying processes recited in the claim are all
acts that could be performed by a human, e.g., mentally or manually, using
pen and paper, without the use of a computer or any other machine. For
example, a person, using pen and paper or via oral communication, could
receive payment information; prompt customers to complete customer
service reviews; receive customer service reviews; access unique customer
identifiers (e.g., a number previously assigned to the customer and recorded
with pen and paper); and authenticate the customer service review based on
the unique customer identifier. Simply put, claim 1 recites a mental process,
i.e., a concept performed in the human mind, including an evaluation or

4 This interpretation is consistent with Appellant’s own characterization of
the claims as directed to
a method of authenticating online customer reviews for a plurality
of service providers by receiving payment information from a
customer and receiving a customer service review; using a unique
customer identifier to verify that the review was created by an
actual customer by accessing an authentication database of
information related to the at least one unique customer identifier;
and authenticating the at least one customer service review as being
created by the customer which that [sic] received the service by
matching the unique customer identifier with the information about
the service performed for the customer by the service provider
(Appeal Br. 9).
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judgment, and therefore, an abstract idea. See 2019 Revised Guidance,
84 Fed. Reg. at 52. See also CyberSource Corp. v. Retail Decisions, Inc.,
654 F.3d 1366, 1373 (Fed. Cir. 2011) (holding that method steps that can be
performed in the human mind, or by a human using a pen and paper, are
unpatentable mental processes).
Having concluded that claim 1 recites a judicial exception, i.e., an
abstract idea (Step 2A, Prong One), we next consider whether the claim
recites additional elements that integrate the judicial exception into a
practical application (Step 2A, Prong Two).
The only additional elements recited in claim 1, beyond the abstract
idea, are the “one or more mobile devices,” “a mobile payment system,” “an
authentication server,” and “an authentication database,” — elements that, as
the Examiner observes (Non-Final Act. 10), are described in the
Specification as generic computer components (see, e.g., Spec. ¶¶ 23–25,
48). We find no indication in the Specification, nor does Appellant direct us
to any indication, that the operations recited in claim 1 require any
specialized computer hardware or other inventive computer components,
i.e., a particular machine, invoke any assertedly inventive programming, or
that the claimed invention is implemented using other than generic computer
components to perform generic computer functions. See DDR Holdings,
LLC v. Hotels.com, L.P., 773 F.3d 1245, 1256 (Fed. Cir. 2014) (“[A]fter
Alice, there can remain no doubt: recitation of generic computer limitations
does not make an otherwise ineligible claim patent-eligible.”).
We also find no indication in the Specification that the claimed
invention effects a transformation or reduction of a particular article to a
different state or thing. Nor do we find anything of record, short of attorney
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argument, that attributes an improvement in technology and/or a technical
field to the claimed invention or that otherwise indicates that the claimed
invention integrates the abstract idea into a “practical application,” as that
phrase is used in the 2019 Revised Guidance.5
Appellant ostensibly maintains that the pending claims are not
directed to an abstract idea because, like the claims at issue in Research
Corp. Technologies, Inc. v. Microsoft Corp., 627 F.3d 859, 869 (Fed. Cir.
2010), the pending claims provide “specific applications or improvements to
technologies in the marketplace” (Appeal Br. 11). Appellant argues that the
present claims provide “a specific application of using unique identifying
information to improve verification of the authenticity of customer
feedback” and, thereby, improve upon “conventional feedback processes by
ensuring that the feedback is provided by customers that actually received
the goods or services for which feedback is provided, rather than anonymous
negative or positive feedback provided by fictitious customers (i.e.,
customers that never received the goods or services)” (id.).6 But, we are not
persuaded that verifying customer reviews is a technical problem, as

5 The 2019 Revised Guidance references the MANUAL OF PATENT
EXAMINING PROCEDURE (“MPEP”) § 2106.05(a)–(c) and (e) in describing
the considerations that are indicative that an additional element or
combination of elements integrates the judicial exception, e.g., the abstract
idea, into a practical application. 2019 Revised Guidance, 84 Fed. Reg.
at 55. If the recited judicial exception is integrated into a practical
application, as determined under one or more of these MPEP sections, the
claim is not “directed to” the judicial exception.
6 Appellant asserts that “[p]rior to the electronic solutions claimed by the
present application, customer service reviews could only be authenticated by
a service provider if the review was presented in-person to the service
provider by the customer” (Appeal Br. 11).
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opposed to a business problem, or that employing unique identifying
information to verify the authenticity of customer feedback is a
technological improvement, as opposed to an improvement to a business
practice.
We also are not persuaded by Appellant’s further argument that the
present application is “claiming a technology-based solution that would
require specific programming of various system components . . . to
authenticate customer reviews based on interactions between mobile
devices, mobile payment systems, and authentication servers” (Appeal
Br. 13; see also Reply Br. 14). As described above, we find no indication in
the Specification that the operations recited in claim 1 require any
specialized computer hardware or other inventive computer components,
invoke any assertedly inventive programming, or that the claimed invention
is implemented using other than generic computer components to perform
generic computer functions.
Indeed, although Appellant maintains that “specific programming” is
required, claim 1 provides no technical details regarding how the
authentication process is performed. Instead, the claim simply calls for an
authentication server that accesses “information related to at least one
unique customer identifier from an authentication database,” i.e., a generic
computer component performing a generic computer function. Cf. Prism
Techs. LLC v. T-Mobile USA, Inc., 696 F. App’x 1014, 1017 (Fed. Cir.
2017) (claimed “authentication server,” “access server,” “Internet Protocol
network,” “client computer device,” and “database” amounted to
“indisputably generic computer components.”); Credit Acceptance Corp. v.
Westlake Services, LLC, 859 F.3d 1044, 1057 (Fed. Cir. 2017); Easy Web
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Innovations, LLC v. Twitter, Inc., No 11-CV-4550 (JFB) (SIL), 2016 WL
1253674 (E.D.N.Y. March 30, 2016), aff’d, 689 F. App’x 969 (Fed. Cir.
2017) (“receiving, authenticating, and publishing data” is an abstract idea).
Responding to the Examiner’s Answer, Appellant ostensibly attempts
to draw an analogy between the present claims and those at issue in Enfish
(Reply Br. 3–4; see also Appeal Br. 12 (arguing that the claims at issue are
like those in Enfish)). But, we can find no parallel between claim 1 and the
claims at issue in Enfish.
There, the Federal Circuit held that claims reciting a self-referential
table for a computer database were not directed to an abstract idea under
step one of the Mayo/Alice framework, and were patent eligible, because the
claims were directed to an improvement in computer functionality. Enfish,
822 F.3d at 1336. The specification described the benefits of using a self-
referential table – faster searching and more effective data storage – and
highlighted the differences between the claimed self-referential table and a
conventional database structure. Id. at 1333, 1337. The Federal Circuit,
thus, rejected the district court’s characterization of the claims as directed to
the abstract idea of “storing, organizing, and retrieving memory in a logical
table,” id. at 1337, emphasizing that the key question is whether the focus of
the claims is on the specific asserted improvement in computer capabilities
or, instead, on a process that qualifies as an abstract idea for which
computers are invoked merely as a tool. Id. at 1335–36.
Appellant maintains here that utilizing at least one unique customer
identifier provides benefits over conventional feedback processes by
ensuring that feedback is provided by customers that actually received the
goods or services; and Appellant argues that this amounts to an improvement
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in computer functionality analogous to Enfish’s self-referential table (Reply
Br. 3–4; see also Appeal Br. 13 (arguing that by improving on customer
feedback systems that enable fictitious reviews and making such systems
more dynamic and efficient (i.e., enabling only authentic customer reviews
to be provided), the claimed invention represents a software-based invention
that improves the performance of the customer review system itself)). Yet,
as the court expressly recognized in Enfish, there is a fundamental difference
between computer functionality improvements, on the one hand, and uses of
existing computers as tools to perform a particular task, on the other. The
alleged advantages that Appellant touts do not concern an improvement to
computer capabilities but instead relate to an alleged improvement in
authenticating information, namely verifying that a review is from a
particular customer identified by the at least one unique customer identifier –
a process in which a computer is used as a tool in its ordinary capacity.
We also are not persuaded of Examiner error to the extent Appellant
maintains that the claims are not directed to an abstract idea because the
claims are allegedly novel, i.e., that the claims “are not directed to
something that was being done before” (Appeal Br. 10). Neither a finding of
novelty nor a non-obviousness determination automatically leads to the
conclusion that the claimed subject matter is patent eligible. Indeed,
“[g]roundbreaking, innovative, or even brilliant discovery does not by itself
satisfy the § 101 inquiry.” Ass’n for Molecular Pathology v. Myriad
Genetics, Inc., 569 U.S. 576, 591 (2013). A novel and non-obvious claim
directed to a purely abstract idea is, nonetheless, patent ineligible. See
Mayo, 566 U.S. at 90; see also Diamond v. Diehr, 450 U.S. 175, 188–89
(1981) (“The ‘novelty’ of any element or steps in a process, or even of the
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process itself, is of no relevance in determining whether the subject matter of
a claim falls within the § 101 categories of possibly patentable subject
matter.”).
It also is not controlling that the claims do not preempt all ways of
authenticating customer reviews (Appeal Br. 13). Although the Supreme
Court has described “the concern that drives [the exclusion of abstract ideas
from patent-eligible subject matter] as one of pre-emption,” Alice Corp.,
573 U.S. at 216, characterizing preemption as a driving concern for patent
eligibility is not the same as characterizing preemption as the sole test for
patent eligibility. “The Supreme Court has made clear that the principle of
preemption is the basis for the judicial exceptions to patentability” and “[f]or
this reason, questions on preemption are inherent in and resolved by the
§ 101 analysis.” Ariosa Diagnostics, Inc. v. Sequenom, Inc., 788 F.3d 1371,
1379 (Fed. Cir. 2015) (citing Alice Corp., 573 U.S. at 216). “[P]reemption
may signal patent ineligible subject matter, [but] the absence of complete
preemption does not demonstrate patent eligibility.” Id.7

7 In an effort to distinguish the pending claims from the claims at issue in
SmartGene, Inc. v. Advanced Biological Labs., 555 F. App’x 950 (Fed. Cir.
2014), Appellant argues that “[c]omparing new and old information would
mean receiving new information and comparing it to stored information to
see if it is the same or different” (Appeal Br. 12). Yet, comparing received
information to stored information (to see if it matches) is exactly how the
Specification describes the operation of the authentication server. See Spec.
¶ 28 (“The review authentication server 108 will match the unique customer
identifier with data stored in a connected authentication database 110 or
request data needed to authenticate the customer from customer records
stored in a customer database 114 of a business server 112 of the service
provider/business (step 208)”). Cf. Berkheimer v. HP, Inc., 881 F.3d 1360,
1366 (Fed. Cir. 2018) (concluding that parsing, comparing, storing, and
editing data are abstract ideas).
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We conclude, for the reasons outlined above, that claim 1 recites a
mental process, i.e., an abstract idea, and that the additional elements recited
in the claim are no more than generic components used as tools to perform
the recited abstract idea. As such, they do not integrate the abstract idea into
a practical application. See Alice Corp., 573 U.S. at 223–24 (“[W]holly
generic computer implementation is not generally the sort of ‘additional
featur[e]’ that provides any ‘practical assurance that the process is more than
a drafting effort designed to monopolize the [abstract idea] itself.’” (quoting
Mayo, 566 U.S. at 77)). Accordingly, we agree with the Examiner that
claim 1 is directed to an abstract idea.
Step Two of the Mayo/Alice Framework (2019 Revised Guidance, Step 2B)
Having determined under step one of the Mayo/Alice framework that
claim 1 is directed to an abstract idea, we next consider under Step 2B of the
2019 Revised Guidance, the second step of the Mayo/Alice framework,
whether claim 1 adds specific limitations beyond the judicial exception that
are not “well-understood, routine, conventional” activity in the field, or
simply appends well-understood, routine, conventional activities previously
known to the industry, specified at a high level of generality, to the judicial
exception.
Appellant argues here that even if claim 1 is directed to an abstract
idea, the claim “as a whole amounts to significantly more than the judicial
exception” (Appeal Br. 14) “at least because the elements of claim 1 are not
routine or conventional” (Reply Br. 15). Appellant acknowledges that
“claim 1 may use arguably generic components,” but, according to
Appellant, “these components operate in an unconventional manner to
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achieve an improvement in a technological or Internet-centric application”
(Reply Br. 15).
Appellant ostensibly refers to “communications with an authentication
server” and “interactions between the devices,” i.e., mobile devices, mobile
payment systems, and authentication servers, as providing a technological
improvement (Appeal Br. 15). Yet, Appellant has not persuasively
explained how the claimed communication (e.g., “receiving, by an
authentication server, a customer service review”) amounts to an
improvement to computer technology. The bare fact that claim 1 involves
receiving information by an authentication server does not provide an
inventive concept where, as here, the claimed “interaction” between the
devices amounts to merely sending and receiving information. See, e.g.,
buySAFE, Inc. v. Google, Inc., 765 F.3d 1350 (Fed. Cir. 2014) (“That a
computer receives and sends the information over a network – with no
further specification – is not even arguably inventive.”).
Appellant further argues that the section 101 rejection cannot be
sustained because the Examiner has failed to “provide any evidence meeting
the requirements of items (1)–(4) of the Berkheimer Memo to show that the
combination of features is well-understood, routine or conventional.”
(Reply Br. 16–17) (citing Berkheimer v. HP, Inc., 881 F.3d 1360 (Fed. Cir.
2018), and the Office’s April 19, 2018 Memorandum to the Patent
Examining Corps entitled, “Changes in Examination Procedure Pertaining to
Subject Matter Eligibility, Recent Subject Matter Eligibility Decision
(Berkheimer v. HP, Inc.)” (the “Berkheimer Memorandum”)).8 According

8 Available at: https://www.uspto.gov/sites/default/files/documents/memo-
berkheimer-20180419.PDF
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to Appellant, “the claimed combination of features recited in amended
claim 1 is not shown to be well-understood, routine or conventional” (id.
at 17).
That argument is not persuasive at least because “the relevant inquiry
is not whether the claimed invention as a whole is unconventional or non-
routine,” BSG Tech LLC v. BuySeasons, Inc., 899 F.3d 1281, 1290 (Fed. Cir.
2018). Instead, the question under step two of the Mayo/Alice framework
(i.e., step 2B) is whether the claim includes additional elements, i.e.,
elements other than the abstract idea itself, that “‘transform the nature of the
claim’ into a patent-eligible application.” Alice Corp., 573 U.S. at 217
(quoting Mayo, 566 U.S. at 79, 78).
Here, the claimed steps of receiving payment information, prompting
the customer to complete a review, receiving a review from a customer,
accessing information related to at least one unique customer identifier from
an authentication database, and authenticating the customer service review
are part of the abstract idea itself; they are not additional elements to be
considered when determining whether claim 1 includes additional elements
or a combination of elements that is sufficient to amount to significantly
more than the judicial exception.
It could not be clearer from Alice, as described above, that under
step two of the Mayo/Alice framework, the elements of each claim are
considered both individually and “as an ordered combination” to determine
whether the additional elements, i.e., the elements other than the abstract
idea itself, “transform the nature of the claim” into a patent-eligible
application. Alice Corp., 573 U.S. at 217; see also Mayo, 566 U.S. at 72–73
(requiring that “a process that focuses upon the use of a natural law also
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contain other elements or a combination of elements, sometimes referred to
as an ‘inventive concept,’ sufficient to ensure that the patent in practice
amounts to significantly more than a patent upon the natural law itself”)
(emphasis added). In other words, the inventive concept under step two of
the Mayo/Alice framework cannot be the abstract idea itself:
It is clear from Mayo that the “inventive concept” cannot be the
abstract idea itself, and Berkheimer . . . leave[s] untouched the
numerous cases from this court which have held claims ineligible
because the only alleged “inventive concept” is the abstract idea.
Berkheimer v. HP, Inc., 890 F.3d 1369, 1374 (Fed. Cir. 2018) (Moore, J.,
concurring); see also BSG Tech, 899 F.3d at 1290 (“It has been clear since
Alice that a claimed invention’s use of the ineligible concept to which it is
directed cannot supply the inventive concept that renders the invention
‘significantly more’ than that ineligible concept.”) (citation omitted).
The Examiner determined here, and we agree, that the only claim
elements beyond the abstract idea are “one or more mobile devices,” “a
mobile payment system,” “an authentication server,” and “an authentication
database,” i.e., generic computer components used to perform generic
computer functions (Non-Final Act. 10) — a determination amply supported
by, and fully consistent with the Specification (see, e.g., Spec. ¶¶ 23–25,
48).9

9 The Berkheimer Memorandum expressly directs that an examiner may
support the position that an additional element (or combination of elements)
is well-understood, routine or conventional with “[a] citation to an express
statement in the specification . . . that demonstrates the well-understood,
routine, conventional nature of the additional element(s)” (Berkheimer
Memorandum 3).
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Appellant cannot reasonably maintain that there is a genuine issue of
material fact regarding whether operation of these components is well-
understood, routine, or conventional, where, as here, there is nothing in the
Specification to indicate that the operations recited in claim 1 require any
specialized hardware or inventive computer components, or that the claimed
invention is implemented using other than generic computer components to
perform generic computer functions, e.g., receiving information, prompting
for information, accessing information, and authenticating information.
Indeed, the Federal Circuit, in accordance with Alice, has “repeatedly
recognized the absence of a genuine dispute as to eligibility” where claims
have been defended as involving an inventive concept based “merely on the
idea of using existing computers or the Internet to carry out conventional
processes, with no alteration of computer functionality.” Berkheimer,
890 F.3d at 1373 (Moore, J., concurring) (citations omitted); see also BSG
Tech, 899 F.3d at 1291 (“BSG Tech does not argue that other, non-abstract
features of the claimed inventions, alone or in combination, are not well-
understood, routine and conventional database structures and activities.
Accordingly, the district court did not err in determining that the asserted
claims lack an inventive concept.”).
We are not persuaded, on the present record, that the Examiner erred
in rejecting independent claim 1 under 35 U.S.C. § 101. Therefore, we
sustain the Examiner’s rejection of claim 1, and claims 2–18, which fall with
claim 1.
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Anticipation
Independent Claim 1 and Dependent Claims 2 and 5–7 (Chang)
Appellant contends that the rejection of claim 1 under 35 U.S.C.
§ 102(b) is improper, and cannot be sustained because Chang does not
disclose “receiving, by an electronic payment system, payment information
from a customer for a service provided by a service provider,” as recited in
claim 1 (Appeal Br. 16). Appellant acknowledges that Chang discloses a
transaction server 102 (which the Examiner equates to the claimed
“electronic payment system”) that transmits an email to a client prompting
the client to submit a product review (id.). But, Appellant argues that
“Chang is silent as to the ‘transaction server’ receiving anything, let alone,
payment information from a customer for a service provided by a service
provider,’ as set forth in claim 1” (id.). Thus, according to Appellant, the
“[m]ere existence of the transaction information in a database is not the
same as transmission of it from a source (e.g., a customer) to a destination
(e.g., the claimed electronic payment server)” (id.; see also Reply Br. 17–
18).
As best understood, Appellant does not maintain that the claimed
“payment information” does not encompass the transaction information
stored in Chang. Rather, Appellant appears to argue that Chang’s
transaction information is stored by the transaction server, but not received
by the transaction server from a customer.
Chang discloses a system comprising “transaction server 102, client
computers 104, and communication network(s) 106 for interconnecting these
components” (Chang, 4:50–52; Fig. 1). Transaction server 102 includes,
inter alia, a “transaction database 220 that stores transaction records 222 of
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customer transactions (e.g., purchases)” (id. at 5:23–24; Fig. 2).
Each transaction record 222 includes, among other information, a
Transaction ID 402 that uniquely identifies a particular transaction and a
Customer ID 406 that associates the information in transaction record 220
with a particular customer (id. at 6:53–67; Fig. 4). Chang further discloses
that “transaction IDs and customer IDs may be associated with online orders
from online customers” (id. at 7:4–6). Each transaction record 222 can also
include a charged flag 416 that indicates that the customer has been charged
for the product (id. at 7:22–23). Transaction server 102 also includes a
customer database 240 that stores customer records 242 (id. at 7:38–39;
Fig. 4). Customer records 242 include a customer ID 406 and associated
information about the customer, including billing address and billing
information (id. at 7:39–51).
We agree with the Examiner that a person of ordinary skill in the art
would understand that Chang discloses a transaction server that receives
transaction information and customer information (including, inter alia,
charged flag 416, billing address, and billing information) associated with
online orders from online customers (see Non-Final Act. 14–15; see also
Ans. 9–10). In other words, Chang discloses that transaction server 102
receives “payment information” for online orders from customers, as called
for in claim 1.
Therefore, we sustain the Examiner’s rejection of claim 1 under
35 U.S.C. § 102(b). We also sustain the rejection of dependent claims 2 and
5–7, which are not argued separately.
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Independent Claim 10 and Dependent Claims 11–16 (Black)
Appellant contends that the rejection of claim 10 under 35 U.S.C.
§ 102(b) is improper, and cannot be sustained because Black does not
disclose “authenticating, by the authentication server, the at least one
customer service review as being created by the customer which received the
service if the at least one unique customer identifier matches the information
about the service performed for the customer by the service provider” as
recited in claim 10 (Appeal Br. 17–18). Appellant notes that the Examiner
“cites to par. 0010, 0019, 0022, 0029 and additionally 0031–0036 in support
of the rejection” (id. at 17). And Appellant argues that none of the cited
paragraphs discloses or suggests the argued limitation at least because “‘a
unique customer identifier’ is not disclosed and there is no explanation of
how the ‘checking’ is performed” (id. at 18).10
In rejecting claim 10 as anticipated by Black, the Examiner found that
Black discloses the argued limitation in paragraphs 10, 19, 22, 29 and 31–
39. Paragraphs 37–39 of Black, in particular, disclose the details of the
validation performed by the third party validator. For example, as the
Examiner points out, paragraph 38 of Black “discloses where the ‘third-party
validator validates initial information by comparing the temporal data
associated with the initial information with the provider data collected from
the service provider to ensure that the information was provided by a
verified customer of the provider’” (Non-Final Act. 23) And based on this

10 Appellant acknowledges that Black discloses “checking to ensure initial
customer feedback was provided by a verified customer” and provides
“specific examples of temporal data used by the digital ratings device to
associate the initial information to a customer” (id. at 18) (citing Black
¶¶ 19, 22, 29).
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disclosure, the Examiner finds that “Black is performing matching and
checking operations in verifying (authenticating) the information” (id.).
Appellant does not address paragraphs 37–39 of Black either in the
Appeal Brief or Reply Brief. Nor does Appellant otherwise provide any
argument to demonstrate that the Examiner’s findings are unreasonable or
unsupported.
Therefore, we sustain the Examiner’s rejection of claim 10 under
35 U.S.C. § 102(b). Cf. In re Baxter Travenol Labs., 952 F.2d 388, 391
(Fed. Cir. 1991) (“It is not the function of this court to examine the claims in
greater detail than argued by an appellant, looking for [patentable]
distinctions over the prior art.”). We also sustain the rejection of dependent
claims 11–16, which are not argued separately.
Obviousness
Appellant does not argue the obviousness rejections of dependent
claims 3, 4, 8, 9, 17, and 18, except by reference to Appellant’s arguments
with respect to independent claims 1 and 10 (Appeal Br. 19). Appellant’s
arguments with respect to independent claims 1 and 10 are not persuasive of
Examiner error for the reasons set forth above. Accordingly, the Examiner’s
obviousness rejections of dependent claims 3, 4, 8, 9, 17, and 18 are
sustained.
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CONCLUSION
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–18 101 Eligibility 1–18
1, 2, 5–7 102(b) Chang 1, 2, 5–7
10–16 102(b) Black 10–16
3, 4, 8 103 Chang, Tuchman 3, 4, 8
9 103 Chang, Black 9
17 103 Black, Delepet 17
18 103 Black, Page 18
Overall
Outcome
1–18
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).
AFFIRMED